Thank you, Mr. Speaker.
Public Interest Override
Clause 4 of Bill 29 proposes to amend the ATIPP Act to provide that, for certain records, the exemption from disclosure provided under the act will not apply where the applicant "demonstrates that a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption." This means that, where the act prohibits a record from being disclosed, the person seeking access may be able to obtain the record if they are able to demonstrate that the public's need to know is more important than the privacy considerations that would otherwise prevent the record from being disclosed.
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Committee heard from Mr. David Loukidelis, a former British Columbia Information and Privacy Commissioner, who appeared before the committee as a witness at the invitation of the NWT IPC. Mr. Loukidelis asserted that the proposal does not go far enough because it only allows the public interest to override four of the act's disclosure exemptions: advice from officials (section 14), intergovernmental relations (section 16), government's economic interests (section 17), and harm to the applicant or another individual (section 21). In contrast, Mr. Loukidelis notes, the public interest prevails over all of the secrecy provisions contained in the ATIPP acts of Alberta, British Columbia, Prince Edward Island, and New Brunswick.
"The bar is set too high -- the public interest would only win out over secrecy where there is a 'compelling' public interest that 'clearly outweighs the purpose of the exemption.' Experience with similar language in Ontario shows that the bar is so high that the override will effectively be illusory."
Both Mr. Loukidelis and the IPC additionally point out that clause 4 of Bill 29 only applies in instances where someone has made a request for a record. They argue that there should be a positive duty on government to disclose information that is in the public interest. As the NWT IPC noted:
"Bill 29 should be amended to provide that the public body is required to disclose to the public, an affected group of people or an applicant, as promptly as practicable, information about a risk of serious harm to the environment or to the health or safety of the public or a group of people. This duty should apply, to be clear, regardless of whether an access request has been made."
Finally, both the IPC and Mr. Loukidelis express concern that clause 4 of Bill 29 places the onus on a member of the public to demonstrate a compelling public interest "from a position of complete or near complete ignorance." This observation served to confirm committee's view that this places an unreasonable burden of proof on the applicant.
Committee Response
In response to these concerns, committee moved motion 2, which places a positive duty on government to disclose to the public, without delay, information about a risk of significant harm to the environment or to the health or safety of the public or information that, for any other reason, should be disclosed because it is clearly in the public interest to do so. This public interest override applies throughout the act, not just to the four disclosure exemptions provided for in clause 4 of the bill. It also removes the requirement for a member of the public to demonstrate a compelling public interest and, instead, puts the onus on government to ensure that, regardless of protections provided under ATIPP, information in the public interest is properly disclosed.
Labour Relations Information
Clause 17 of Bill 29 proposes to add a new section 24.1 to the act, that would require a public body to refuse to disclose to an applicant "labour relations information, the disclosure of which could reasonably be expected to reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations matter."
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As pointed out by the IPC in her submission, "this would be a mandatory exemption, and a public body would not be permitted to waive its protection." She goes on to express the view that "this is a potentially vast black hole in the act. For one thing, the terms 'labour relations information' and 'labour relations matter' are not defined. They could be very broad in their scope."
The IPC also expresses her concern with the proposal to "withhold even the final report of a labour arbitrator or similar decision-maker," noting that, with respect to arbitration decisions, "there is no good reason for an access to information law to require them to be secret." She argues that "these decisions are an important part of our law and the act should not require them to remain secret when an access request is made for an unpublished decision."
Committee Response
Committee agrees that the exemption from disclosure of information harmful to the GNWT's labour relations interests is too broad as set out in clause 17 of Bill 29. Committee discussed with Justice the possibility of adding a definition to the act and was persuaded by the department's concern that such a definition this might inadvertently capture types of information that should not be exempted or, conversely, fail to address types of information that should. Committee also considered an approach that would narrow the scope of the provision by inserting a "harms test." The effect of this would be to require a public body to give consideration to the nature of the information being requested, to determine if it "could reasonably be expected to (i) harm the competitive position of the GNWT as an employer; (ii) interfere with the negotiating position of the public body as an employer, or (iii) result in financial loss or gain to the public body as an employer."
Unfortunately, an amendment to clause 17 of the bill could not be finalized in time for this provision to be amended at the committee stage. Had such an amendment been completed, it would have been moved as motion 7, which is why readers of this report will not find such a motion in Appendix 1 to this report.
Committee has enjoyed a positive and extremely collaborative relationship with the Minister of Justice and his staff on the review of Bill 29, and work to resolve the committee's concern is still underway as this report is being read into the record. Committee has every confidence that a solution can be reached that is satisfactory to both the Minister and to committee and that will result in a further amendment to this bill on the floor of the House.
Mr. Speaker, I pass the further reading on to the honourable Member for Nunakput.